GULZAR vs THE STATE
This is a post-arrest bail application filed before the Sindh High Court by the applicant Gulzar, who was booked in Crime No. 62 of 2010 under sections 393, 452, 337A(ii), 148, and 149 of the Pakistan Penal Code 1860 at Police Station B-section, New Pind. The core legal question revolved around whether the applicant was entitled to post-arrest bail considering the general nature of allegations, delay in lodging the F.I.R., and the nature of recoveries attributed to him. The court held that no direct role or specific overt act was attributed to the applicant in the F.I.R., and while a robbed pistol was allegedly recovered from him, the applicability of common intention required further inquiry at trial. Consequently, the court granted post-arrest bail to the applicant under section 497(2) of the Code of Criminal Procedure 1898, laying down that tentative assessment at the bail stage may warrant further inquiry when direct roles are absent and common intention is a matter for trial.
- Whether post-arrest bail should be granted when no specific role is attributed to the accused in the F.I.R.?
- Does the recovery of a weapon alone preclude the grant of bail when the applicability of common intention requires further inquiry?
- Can unexplained delay in lodging the F.I.R. be considered as a ground for granting bail to an accused?
- Section 393, Pakistan Penal Code 1860
- Section 452, Pakistan Penal Code 1860
- Section 337A(ii), Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 391, Pakistan Penal Code 1860
- Section 497(2), Code of Criminal Procedure 1898
ORDER
1. ' MUHAMMAD TASNIM, J.---Through this bail application applicant has prayed for post-arrest bail, who is booked in Crime No, 62 of 2010 registered with Police Station B-section, New Pind, under sections 393,452, 337A (ii), 148,149: ' The case of the prosecution set-out in the F.I.R. Is that on 17-4-2010 complainant Mirzado recorded F.I.R. Stating therein that on 15-4-2010 at about 0430 hours, present applicant along with other six accused persons, duly armed with weapons, entered the house of complainant. Co-accused Moula Bux forcibly removed golden chain from the neck of Shahzado whereas co-accused Shaman alias Shamoon also forcibly removed golden chain from the neck of Mst. Sana, wife of complainant's brother. On her resistance, said accused caused her hurt with butt blows of pistol on her head while accused Moula Bux, Shaman alias Shamoon, Mukhtiar and Anwar Kori overpowered upon the complainant. Thereafter present applicant, Kashmir alias Kashoo and Ghulam Nabi went inside the room and committed dacoity of articles, details of which mentioned in the F.I.R.
2. Complainant party brought injured Mst. Sana at Police Station and after obtaining letter approached hospital for treatment and certificate. After having failed to get recovered the articles from the accused persons., he lodged the F.I.R.
3. ' Learned counsel for the applicant has submitted that as many as seven persons have been implicated in the F.I.R. And it is pointed out that three persons, namely., Moula Bux, Gulzar and Kashmir have been arrested and rest of the accused persons are absconding. Learned counsel further submits that there is unexplained delay in lodging of F.I.R., benefit whereof be extended to the applicant. He further says that no role to the applicant has been assigned in the F.I.R. He says that the allegations against the applicant are general in nature. He further says that no recovery of robbed article has been made from the applicant. He further says that no allegation of causing injury to the applicant to anyone has been attributed to the applicant. In the circumstances he prays that the applicant be admitted to bail.
4. ' On the other hand, learned D.P.-G. Has invited my attention to the provision of section 391, P.P.C.
5. And argued that all seven accused persons with common intention entered in the house of complainant to commit robbery, hence all the accused persons mentioned in the F.I.R. Are equally responsible for the offence charged. He further says that present applicant is not entitled to bail as sister-in-law of the complainant has been injured and recovery of robbed pistol has been effected from him. He says that by this recovery, presence of the applicant at the scene of offence is confirmed. He says that bail application be dismissed.
6. ' I have heard the learned counsel for the parties and have perused the record so also unreported order passed by my learned brother Mr. Justice Ghulam Sarwar Korai passed in Criminal Bail Application No,209 of 2010. From the perusal , of F.I.R., it appears that no whatsoever has been assigned to the applicant and no directed role robbed article has been recovered from the applicant except recovery of robbed pistol for which learned counsel for the applicant says that same has been foisted by the police just to implicate the applicant. No direct role for commission of offence has been attributed to the present applicant. Even otherwise, there is unexplained delay in lodging of the F.I.R. On the part of the complainant. It is settled law that at bail stage deeper appreciation of evidence cannot be gone into, but tentative assessment is to be made just to find out as to whether applicant is connected with the commission of offence or not. No doubt, from the recovery of pistol as pointed out by learned D.P.-G. It can be said that the applicant was present at the scene of offence, but F.I.R. Does not attribute any role to the applicant. With regard to common intention and commission of offence by all the accused persons, named in the F.I.R., it is to be decided once evidence of the prosecution is recorded. The case requires further enquiry in terms of section 497(2), Cr.P.C.
7. ' In these circumstances, I admit the applicant on bail subject to his furnishing solvent surety in the sum of Rs,100.000 (One lac) and execution of personal bond in the like amount to the satisfaction of the trial Court.
8. ' Bail application stands disposed of accordingly.